DDJ Lynch, Slough County Court, 12th June 2017 (first instance)

HHJ Clarke, Oxford County Court, 14th December 2017 (on appeal)

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Here the Claimants left the RTA Portal unreasonably, then settled the matter by way of Part 36 offer. The Claimants, represented by Kevin Latham, argued that on acceptance of a Part 36 offer, the Defendant could not seek costs to be limited under CPR 45.24 because the costs were governed by CPR 36.20, which specifically directed the tables in CPR 45 SIIIA, rather than more generally to SIIIA. However, Sarah successfully argued that if the Claimant had not left the Portal unreasonably, parties would not have been able to make a Part 36 offer, and you could not retrospectively 'correct' an earlier unreasonable exit. Furthermore CPR 36.20 was headed 'Cost consequences of acceptance of a Part 36 offer where SIIIA of Part 45 applies. Thus if costs were to be assessed under CPR 36.20, the costs were those under SIIIA, which included CPR 45.24.

 

The lower court accepted Sarah's submissions and confirmed that CPR 45.24 remains open for a court to use even on acceptance of a Part 36 offer.

 

The Claimant appealed, but unsuccessfully. The appellate court upheld the decision at first instance, noting that CPR 45.29(1) specifically stated it was subject to ss(3) which preserved the court's power in CPR 45.24.

 

 

NB There are now two inconsistent decisions at the same level, so some higher authority would be welcome to clarify which is the correct approach.  Readers are reminded of the principle in Patel v Secretary of State for the Home Dept [2013] UKSC 72 at [59] where the court found that as a matter of general principle, thus

• Where there are conflicting decisions from judges of co-ordinate jurisdiction, then, in the absence of cogent reasons to the contrary, the second of those decisions should be followed.  

As Ansell is the later decision, this should therefore, be preferred over Cookson v Manchester City Council.